Leave Requests and the ADAby Victoria Bartow | January 11, 2017
When an employee is confronted with a medical issue, particularly a sudden condition or illness, it is a time of fear and confusion. While it certainly cannot equate to what an employee is experiencing, our clients, the employers, are also faced with navigating a difficult situation. Almost all employers know one thing for sure – lead with compassion and the rest will follow. As attorneys we help to figure out “the rest,” which includes the legal obligations of an employer in addressing employees with medical conditions that ask for leave of absences.
Most companies are familiar with the Family Medical Leave Act (FMLA), which entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. However, employers often forget about leave as a reasonable accommodation under the Americans with Disability (ADA). The ADA prohibits discrimination on the basis of disability in employment and requires that covered employers provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities. Remember that an individual is “considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.”1 Many common medical conditions such as cancer, diabetes, and mental illness meet this definition. Also recall that an employer has an obligation to provide reasonable accommodation to a qualified individual with a disability, unless to do so would impose an undue hardship on the business’s operations.
The Equal Employment Opportunity Commission (EEOC) who is tasked with enforcing the ADA, has reiterated recently that unpaid leave, including extended leave, be considered as reasonable accommodation under the ADA. Therefore, when an employee requests leave due to a medical condition the employer must consider the applicability of the ADA and the obligations that stem from it, including engaging in the ADA “interactive process” – a subject that requires a blog post of its own.
The key takeaway is to remind employers that the FMLA isn’t the only law to consider when addressing employee medical issues. Furthermore, the FMLA only covers private employers with 50 or more employees, but the ADA covers employers with just 15 employees. So, smaller employers must also be aware that just because they don’t have to provide FMLA leave, other types of leave may be on the table.